Madhya Pradesh High Court
Vijay Kumar Jain (Minda) vs Deceasd Natwarlal Neema Through Lrs. ... on 4 April, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 4 th OF APRIL, 2024
MISC. APPEAL No. 5234 of 2022
BETWEEN:-
1. VIJAY KUMAR JAIN (MINDA) S/O SHRI
KISHANLAL JAIN MINDA, AGED ABOUT 58
Y E A R S , OCCUPATION: BUSINESS R/O 40,
MOTIMAHAL ITWARIYA BAZAR, INDORE
(MADHYA PRADESH)
2. SMT. SADHANA SOMANI W/O SHRI DAMODAR
SOMANI, AGED ABOUT 58 YEARS, OCCUPATION:
HOUSE WIFE R/O 40, MOTIMAHAL ITWARIYA
BAZAR, INDORE (MADHYA PRADESH)
.....APPELLANTS
(BY SHAILENDRA SHRIVASTAVA - ADVOCATE)
AND
1. DECEASD NATWARLAL NEEMA THROUGH LRS.
ASHOK NEEMA S/O LATE SHRI NATWARLAL
NEEMA, AGED ABOUT 55 YEARS, OCCUPATION:
C.A. R/O 573, M.G. ROAD TORI CORNER INDORE
BEHIND GIRI LODGE,INDROE (MADHYA
PRADESH)
2. BACHCHU BHAI NEEMA S/O SHRI GOPALDAS
NEEMA, AGED ABOUT 73 YEARS, OCCUPATION:
PROPERTY BROKER FLAT NO. 201, SUNDRAM
APARTMENT 38/2, BIYABANI, DISTRICT INDORE
(MADHYA PRADESH)(DELETED AS PER COURT
ORDER DATED 04.03.24)
3. SMT. KAMLA JAIN W/O SHRI RAJENDRA JAIN,
AGED ABOUT 63 YEARS, OCCUPATION: HOUSE
WIFE 40, MOTIMAHAL BAZAR DISTRICT INDORE
(MADHYA PRADESH)
4. DINESH KUMAR JAIN S/O SHRI BHAGCHAND
JAIN, AGED ABOUT 68 YEARS, OCCUPATION:
BUSINESS R/O 40, MOTIMAHAL ITWARIYA
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 08-04-2024
12:15:39
2
BAZAR, INDORE (MADHYA PRADESH)
5. SMT. CHANDABAI PANCHRATNA W/O SHRI
NAVEEN PANCHRATANA, AGED ABOUT 63 YEARS,
OCCUPATION: HOUSE WIFE R/O 40, MOTIMAHAL
ITWARIYA BAZAR, INDORE (MADHYA PRADESH)
6. SMT. KRISHNADEVI KANKANI W/O SHRI
RAMKRISHNA KANKANI, AGED ABOUT 64 YEARS,
OCCUPATION: HOUSE WIFE R/O 40, MOTIMAHAL
ITWARIYA BAZAR, INDORE (MADHYA PRADESH)
7. SMT. LEELA BAI JAIN W/O SHRI HUKUMCHAND
JAIN, AGED ABOUT 70 YEARS, OCCUPATION:
HOUSE WIFE R/O 40, MOTIMAHAL ITWARIYA
BAZAR, INDORE (MADHYA PRADESH)
8. JINENDRA JAIN S/O SHRI NATHULAL JAIN, AGED
ABOUT 81 YEARS, OCCUPATION: RETIRED R/O 40,
MOTIMAHAL ITWARIYA BAZAR, INDORE
(MADHYA PRADESH)
9. DECEASED LEELA BAI W/O SHRI BAPULAL
NEEMA THROUGH LRS. GIRDHAR NEEMA S/O
LATE SHRI BABUPLAL NEEMA, AGED ABOUT 57
Y E A R S , OCCUPATION: BUSINESS 40/9 SIR
HUKUMCHAND MARG MOTIMAHAL (ITWARIYA
BAZAR) INDORE (MADHYA PRADESH)
10. DECEASED LEELA BAI W/O SHRI BAPULAL
NEEMA THROUGH LRS. SMT.KUSUM NEEMA W/O
SHRI RAMKRISHAN NEEMA (D/O LATE SHRI
BABULAL NEEMA, AGED ABOUT 52 YEARS,
OCCUPATION: HOUSE WIFE 29 SIR
HUKUMCHAND MARG (ITWARIYA BAZAR)
INDORE (MADHYA PRADESH)
11. DECEASED LEELA BAI W/O SHRI BAPULAL
NEEMA THROUGH LRS. SMT. ANITA NEEMA W/O
SHRI KUNDANLAL NEEMA (D/O LATE SHRI
BAPULAL NEEMA), AGED ABOUT 52 YEARS,
OCCUPATION: HOUSE WIFE SATYAM SHIVAM
SUNDRAM PARTMENT BIYAWANI INDORE
(MADHYA PRADESH)
12. SMT. PUSHPA BAI SINGHAI W/O SHRI
HUKUMCHAND SINGHAI, AGED ABOUT 78 YEARS,
OCCUPATION: HOUSE WIFE R/O 40, MOTIMAHAL
ITWARIYA BAZAR, INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 08-04-2024
12:15:39
3
13. SMT. USHARANI NATH S/O SHRI RAJKUMAR
NATH, AGED ABOUT 83 YEARS, OCCUPATION:
HOUSE WIFE R/O 40, MOTIMAHAL ITWARIYA
BAZAR, INDORE (MADHYA PRADESH)
14. DINESH DUBEY S/O SHRI VISHNUPRASAD DUBEY,
AGED ABOUT 68 YEARS, OCCUPATION: SERVICE
R/O 40, MOTIMAHAL ITWARIYA BAZAR, INDORE
(MADHYA PRADESH)
15. SURENDRA KUMAR JAIN S/O SHRI RAJENDRA
JAIN, AGED ABOUT 75 YEARS, OCCUPATION:
RETIRED R/O 40, MOTIMAHAL ITWARIYA BAZAR,
INDORE (MADHYA PRADESH)
16. ASHOK KAL S/O SHRI HEERALAL KALA, AGED
ABOUT 56 YEARS, OCCUPATION: BUSINESS R/O 40,
MOTIMAHAL ITWARIYA BAZAR, INDORE
(MADHYA PRADESH)
17. MANAKCHAND KALA W/O SHRI SUNDERLAL
KALA, AGED ABOUT 81 YEARS, OCCUPATION:
BUSINESS R/O 40, MOTIMAHAL ITWARIYA
BAZAR, INDORE (MADHYA PRADESH)
18. PANKAJ S/O SHRI NARENDRA JAIN THROUGH
POWER OF ATTORNEY JITENDRA JAIN S/O SHRI
NATHULAL JAIN, AGED ABOUT 81 YEARS,
OCCUPATION: RETIRED R/O 40, MOTIMAHAL
ITWARIYA BAZAR, INDORE (MADHYA PRADESH)
19. PANKAJ S/O SHRI NARENDRA JAIN THROUGH
POWER OF ATTORNEY ABHAY GANGAWAL S/O
SHRI VIMALCHAND GANGWAL, AGED ABOUT 58
Y E A R S , OCCUPATION: BUSINESS R/O 40,
MOTIMAHAL ITWARIYA BAZAR, INDORE
(MADHYA PRADESH)
20. PANKAJ S/O SHRI NARENDRA JAIN THROUGH
POWER OF ATTORNEY KU. DEEPA NATH D/O SHRI
RAJKUMAR NATH, AGED ABOUT 53 YEARS,
OCCUPATION: SERVICE R/O 40, MOTIMAHAL
ITWARIYA BAZAR, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VISHAL BAHETI - ADVOCATE FOR RESPONDENT NO.1)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 08-04-2024
12:15:39
4
ORDER
The present appeal has been filed by the appellants/plaintiffs being aggrieved by the order dated 17.10.2022 passed by the learned XXVI District Judge, Indore in Regular Civil Suit No.64-A/2016 whereby the learned trial Court has dismissed the application under Order 22 Rule 3 and 4 read with Order 22 Rule 9 of CPC and application under Section 5 of the Limitation Act for bringing the legal representatives of the respondent no.1/defendant no.1 on record.
2. The brief facts of the case is that appellants and respondent no.3 to 16/plaintiffs have filed civil suit before the trial Court against respondents no.1 and 2/defendants no.1 and 2 for declaration and permanent injunction. During the pendency of the suit, plaintiffs no.3, 6 and 19 have died and on 19.12.2014, plaintiffs came to know that respondent/defendant no.1 has died and after that on getting information about his legal heirs, the appellants with the respondents no.3 to 16 on 19.03.2014 have filed an application under Order 22 Rule 3 and 4 of the CPC alongwith an application under Section 5 of the Limitation Act for setting aside the effect of abatement and bringing the legal representatives of the plaintiffs no.3,6 and 19 and respondent/defendant no.1 on record, but the said application due to oversight mistake correct provision Order 22 Rule 9 of CPC could not be mentioned. After notice to the L.Rs of respondent no.1, L.Rs. of respondent no.1 filed reply on 15.05.2019 of the application under Order 22 Rule 3 and 4 of CPC and application under section 5 of the Limitation Act, denying the averments made in the applications and stated that the said application is time barred because the respondent no.1 has died on 20.06.2014. At the time of filing the said applications mistakenly provision under Order 22 Rule 9 of CPC to set aside the effect of abatement could not be mentioned, Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-04-2024 12:15:39 5 therefore, the appellants rectified the error and filed an application under Order 22 Rule 9(2) of CPC on 22.09.2022 before the trial Court which is part and earlier application dated 19.03.2014. The L.Rs of the respondent no.1 filed reply of the said application on 11.10.2022.
3. After hearing the learned counsel for the parties, the trial Court dismissed the application on the ground of limitation.
4. Being aggrieved by the impugned order, the appellants filed this appeal only pressing the impugned order with respect to L.Rs. of dead respondent no.1. Copy of the impugned order is Annexure A-1.
5. Learned counsel for the appellants submitted that the trial Court has committed error in passing the impugned order. He further submitted that trial Court while deciding the application under Order 22 Rule 4 read with Order 22 Rule 9 of CPC and application under Section 5 of the Limitation Act has committed grave error in adopting hyper-technical approach. The delay was just 164 days which was liable to be condoned. The trial Court committed error in holding that application under Order 22 Rule 9 of CPC is filed with delay of 7 years. So prays for setting aside the impugned order and revival of the suit against the L.Rs. of dead respondent no.1.
6. On the other hand, learned counsel for the respondents supported the impugned order and prays for dismissal of the appeal.
7. After hearing the learned counsel for the parties and on perusal of the document filed by the appellants it is found that appellants had knowledge on 19.12.2014 with regard to the death of respondent no.1. Thereafter appellant filed an application under Order 22 Rule 3 and Order 22 Rule 4 read with Section 151 of CPC (Annexure A-3) on 19.03.2015 without supporting any application under Order 22 Rule 9 of CPC and Order 22 Rule 5(a) and (b) and Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-04-2024 12:15:39 6 Section 5 of the Limitation Act. After lapse of 7 years, appellants filed application under Order 22 Rule 9 of CPC before the trial Court, but did not file any application under Order 22 Rule 5(a) and (b) of CPC for revival of appeal against L.Rs of dead respondent no.1.with application under Section 5 of the Limitation Act.
8. Order 22 Rule 4 of CPC reads as under:-
4. Procedure in case of death of one of several defendants or of sole defendant. - (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where-
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-04-2024 12:15:39 7 the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]
9. According to the Order 22 Rule 5 (a) it is clear that if plaintiff is unable to substitute L.Rs. of the defendant within the limitation, then the suit has, in consequence, abated. According to Order 22 Rule 4 Sub Rule 5(b) if the plaintiff applies after the expiry of the period specified therefor in the limitation Act for setting aside the abatement, then must give application under Section 5 of the Limitation Act.
10. Learned counsel for the appellants submits that they filed application under Order 22 Rule 4 of CPC for bringing L.Rs. of the dead respondent no.1, but under the provision of Order 22 Rule 4 and 5, if within time application was not filed for bringing L.Rs, then it must be supported by application under Section 5 of the Limitation Act.
11. In the present appeal, appellants filed application under Section 5 of the Limitation Act (Annexure A-4) in which there is no mention that they desire to condone the delay in filing the application for bringing the L.Rs. of the dead respondent no.1 on record. So perusal of the document filed by the appellants in support of the appeal, it is clearly established that they had not filed application under section 5 of the Limitation Act for condoning the delay Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-04-2024 12:15:39 8 in filing application under Order 22 Rule 4 of CPC for substituting the LRs of dead respondent no.1, according to Order 22 Rule 5(b) of CPC.
12. In view of the aforesaid discussion, in the considered opinion of this Court, the trial Court has committed error in holding that suit is abated in regard to dead respondent no.1 and has rightly decided the application by observing that application was not within time.
Hence, no case is made out for interference in the impugned order. Accordingly, this appeal is dismissed.
(HIRDESH) JUDGE RJ Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-04-2024 12:15:39